November 2,1970

Hon. John F. Boff Executive Director Texas Board of Examiners in Fitting and Dispensing of HearingAids PenthouseApts., Room 105 Austin, Texas 78701
Dear Mr. Boff: CplnionNo. M-715 the ,Re: Authority of Texas Board

of Examiners In the Fitting and Dispensing of Hearing Aids to conduct educational seminars to licensedand temporary trainees in the hearing aid profession.
We quote from your letter requesting an opinion from this officeas follows:

"TheTexas Board of Examiners in the Fitting and Dispensing of Hearing Aids has instructedme, to request formal opinions fromyour office concerning the following questions: "1. The Board has planned educational seminars to be offered to all licensedand temporary trainees in the hearing aid profession. The seminars are to be conductedby the Board members; no funds are to be collected for the seminars. "TheBoard's authority to hold such seminars is now being challenged on the grounds the Board does not have this power expressed in Article 4566- 1.01 of Vernon's Civil Statutes. "TheBoard feels that it has implied powers to hold these seminarsbasically from Section 1.06 of the Article. Being chargedwith theresponsibility of developing an examination to test the skills and knowledge of those entering the profession, the Board feels that an educationalprogramwould better prepare those Individuals. At the present time no educationalprogram, with the exception of home study courses,are available to the people In the hearing aid fitting and dispensingprofession. "2. In theRules and Regulationspromulgatedby the :Boardthe followingrule was adopted in regards

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to reciprocity:
'On and after May 1, 1970, In accordancewith Section 1.06, 1.08, 1.09 of the Article, all persons applying for licenses shall furnish a physicalhome address and a Texas place of business address;a post office box is not acceptable.
"Does thismean that an Individual living In a border state, licensedby that state to fit and dispense hearing aids, in order to qualify for a Texas licensemust have a physicalresidence within the State of Texas as well as a business addresswithin the State of Texas?"
We will answer your questions in the order in which they are submitted. 1.

The Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids Is createdby the provisions of Article 4566, Vernon's Civil Statutes. The expresspowers of the Board are contained in Article 4566-1.04, Vernon's Civil Statutes,and are quoted as follows: "(a)The Board shallhave the power to make such proceduralrules consistentwith this Act as may be necessary for the performance of its duties. "(b)The Board shallhave the power to appoint committees from its ownmembership, the duties of which shallbe to consider suchmatters, pertaining to the enforcement of this Act, as shall be referred to said committees,and they shallmake recommendationsto the Board in respect thereto. "(c)The Board shallhave the power to employ the services of stenographers,inspectors,agents, attorneys, and other necessaryassistants in carrying out the provisions of this Act. "(cl) The Board, by majority vote, shallhave the power to issue subpoenasand subooenasduces tecum to compel the attendance of witnesses and the production of books, records and documents, to

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administer oaths and to take’testim6ny~concernlng all matters within Its jurlsdlctlon. “(e)The Board shall have the right to institutean action in its own name to enjoin the violation of any of the provisions of this Act. Said action for Injunction shall be in addition to any other action, proceeding or remedy authorized by law.

It is observed from a reading of the above quotedprovisions that the Board does not have the express authority to conduct educational seminars for licensedand temporary trainees in the hearing aid profession,nor do we believe that such.power Is necessarily Implied by theprovisions of Article 4566-1.06, Vernon’s Civil Statutes,which pertains to the examination of applicants for licensing. The Board has no duty to inform or train prospective licenseesbut merely to examine and license them. The giving of seminars is not essential to or an incident of the discharge of its expressduties. Moreover, we observe that the appropriation to the Board contained in House Bill 2, 61st Legislature, 2nd, Called Session, 1969 (TheGeneralAppropriationBill for the 1970-71 biennium) does not contain any express authority for the expenditure of funds for conducting such educational seminars. The source of the powers of State administrativeagencies is stated in 1 Tex. Jur
. 652, AdministrativeLaw, $6, In part, as follows: I,

. . . The agency has only suchpowers as are expressly conferredupon it by statute togetherwith those necessarily implled from power: and duties expressly given or imposed.

. . . Consequently, It is our opinion in answer to your first question that the Texas State Board of Examiners In the Fitting and Dispensing of Hearing Aids has no express or implied authority to conduct educational seminarsunder any of the provisions of Article 4566-1.01-1.21,Vernon's Civil Statutes. 2. The Board has procedural rule maklng authority pursuant to the provisions of Article 4566-1.04(a), supra. We find no requirementunder the provlslons of ArtQle 4566-1.06, 1.08 or 1.09

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or any other of the provisions of the Act which specificallyrequire an applicant for a license in this State to fit and dispense hearing aids to have a "physical"residence and business address within the State of Texas. With regard to an administrativeagency's rule making authority, it is stated in 1 Tex.Jur.2d,Administrative Law, $11, in part, as follows:

11
an age& where a statute expresslyauthorizes

to regulate an industry it implledly authorizes the adoption of regulations to that end. An agency on which such authority is expressly or impliedly conferredmay make reasonable rules and regulations,proper and necessary to the exercise of its powers. However, the rules and regulationsmust be within the clear intent of the statutf?,

and not in excess of thepowers delegated. Consequently, It is our opinion in answer to your second question that the Board's rule, supra, is not a proceduralrule authorizedby Section 1.04(a), supra,but a substantiverule which imposesan additional requirement or qualif'icatton on applicants for a licenseunder the Act. Since we find no express or implied authority for such a rule, we hold that it is void and non-enforceable.
SUMMARY The Texas State Board of Examiners in the Fitting and Dispensing of Hearing Aids has no express or impliedauthority to conduct educational seminarsunder the provisions of Article 4566-1.01-1.21,Vernon's Civil Statutes. The Board's rule, supra, is not a procedural rule authorizedby Section 1.04(a), supra,but a substantiverule which imposes an additionalrequirement or qualificationon applicants for licenseunder the Act. Sincewe find no express or implied authority for such a,r$le,we hold that it is void and non-enforc"%le. .,9

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Hon. John F. Bof’f, page 5 (M-715)

Preparedby Ivan R. Williams, Jr. AssistantAttorney General APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Max Hamilton John Reeves Houghton Brownlee Roger Tyler
MEADE F. GRIFFIN Staff Legal Assistant
NOLA WHITE First Assistant
ALFRED WALKER Executive Assistant

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